Statutory rape happens when an individual over the consenting age has sex with someone below the age of consent. Age of consent means the age a person can legally agree to have sex. In the United States, every state has the ability to set their own age of consent. In California, the age of consent is 18 years old. The reason that statutory rape is a crime in the state of California is because minors under the age of 18 are legally not able to give consent, even if they give consent. Even if the minor was willing to have sexual intercourse

How is Statutory Rape Defined in California?

Under California Penal Code 261.5 PC, statutory rape is defined as engaging in sexual intercourse with an individual under 18 years old who was not the defendant’s spouse at the time of the intercourse. Statutory rape is a crime regardless of whether the sex was consensual or allowed by the minor.

Does a Prosecutor Have to Prove Anything to Convict Me of This Crime?

Yes, to convict a defendant of statutory rape, a prosecutor has to prove three elements: 

  • The defendant had sex with the victim;
  • The defendant and victim weren’t married when the sexual intercourse occurred; and
  • At the time the defendant and victim had sex, the victim was under the age of 18 years old 

Are Rape and Statutory Rape the Same Crime?

No. Rape is considered having unlawful sexual intercourse with a person without their consent without regard of the age of the victim. Whereas statutory rape focuses on the age of the victim. For example, if the defendant is more than 3 years older than the victim, then they may be charged with a misdemeanor or a felony.


Yes. A defendant no more than three years older than the victim will always be charged with misdemeanor statutory rape. 

Can Statutory Rape Be a Felony?

Yes. If the defendant is older than 21 years old and the victim is 16 years old or younger, it’s felony statutory rape. 

What Does it Mean When Statutory Rape is a Wobbler?

A wobbler is a crime that can be a misdemeanor or felony depending on the prosecutor. Statutory rape is considered a wobbler when the defendant is at least three years older than the victim. The victim is 16 years old or older. 

What’s the Punishment for Statutory Rape?

If charged with misdemeanor statutory rape, the defendant may face probation, up to 1 year in jail, and/or a fine of up to $1,000. If charged with felony statutory rape, then the defendant can face probation with up to 1 year in jail or a range of 16 months to possibly 4 years in prison. In addition, they may face a fine of up to $10,000. 

What Are the Defenses for Statutory Rape?

If charged with statutory rape, it is very important to hire a experienced criminal defense attorney who is specialized in sex crimes. The two most commonly used defenses for statutory rape are:

  • There was honest and reasonably believed that the minor was over the age of 18, and
  • No actual sexual intercourse took place with the minor

The evidence that can be used for this type of defense can be the following:

  • The minor made statements that he/she was over the age of 18
  • The minor showed proof that he/she was over the age of 18
  • Where you met the minor was a place that was an adult venue

Do I Need a Lawyer?

Yes, contact a criminal lawyer immediately to begin working on your case.